The European Commission welcomes today’s
judgment by the Court of First Instance (case T-99/04) confirming the
Commission's decision against AC Treuhand AG (AC Treuhand) of December 2003. AC
Treuhand, a Swiss consultancy firm, appealed against the Commission’s
decision that established Treuhand's involvement in a cartel in organic peroxide
where main producers in Europe conspired to fix and raise prices and allocate
customers of organic peroxide products for the production of plastic and rubber.
In particular, the CFI confirmed that AC Treuhand – not itself a producer
but offering secretariat functions to the cartel - had taken part and
contributed actively and intentionally to an illegal cartel. It thereby upheld
the symbolic fine imposed on AC Treuhand. This judgment confirms the validity of
Commission enforcement of anti-cartel provisions also against
companies that facilitate and contribute to the functioning of a cartel, even
where they are not direct producers or distributors of the cartelised product or
service.

On 10 December 2003, the Commission fined producers of organic peroxides in
Europe (Atofina, Peroxid Chemie, Laporte, Perorsa) and the Swiss consultancy
firm AC Treuhand for operating a cartel in organic peroxide products used for
the production of plastic and rubber. The total fine was nearly €70
million(see IP/03/1700).

The contested decision found that from 1971 to 1999, the main producers of
organic peroxides in Europe fixed prices, agreed on and implemented a mechanism
for price increases, allocated customers and set up a system to monitor and
enforce their agreements

The Commission found that AC Treuhand(the successor of Fides Trust
AG) infringed EC Treaty rules on cartels and restrictive business practices
(Article 81) for its facilitating role, by organising meetings, providing
logistical assistance and participating in a set of agreements and concerted
practices in the organic peroxides sector from 28 December 1993 (the date AC
Treuhand took over activities from Fides Trust AG) to 31 December 1999. On these
grounds, the Commission imposed a fine of 1000 Euros on AC Treuhand. The level
of the fine was considered appropriate because this was the first time that a
fine had been imposed on an undertaking which was not itself involved in the
production or distribution of the product in question.

Court of First Instance judgment

AC Treuhand brought an action against the Commission before the Court of
First Instance on 16 March 2004. In support of its application, AC Treuhand
submitted that the Commission erred in finding it liable for the infringement of
Article 81, given that it merely provided services to other organic peroxides
producers and was not active on the market. The applicant alleged that the
Commission had breached the principle of nullum crimen, nulla poena sine
lege, (the principle of legality of sanctions) since the applicant was not a
party to the anti-competitive arrangement that was held contrary to Article
81.

The Court of First Instance rejected that claim and upheld the finding of
infringement (and the fine) against AC Treuhand. The CFI in particular found
that the Commission has correctly established that AC Treuhand contributedto the organisation and holding of meetings and formation of agreements
among producers of organic peroxides. More generally, the CFI confirmed that the
participation of an undertaking, although not active in the market of the
product by the cartel - as a "co-perpetrator" - is contrary to Article 81 of the
EC Treaty. In the words of the CFI: "the Court concludes that any undertaking
which has adopted collusive conduct, including consultancy firms which are not
active on the market affected by the restriction of competition, could
reasonably have foreseen that the prohibition laid down in Article 81(1) EC was
applicable to it in principle. Such an undertaking could not have been unaware,
or was in a position to realise, that a sufficiently clear and precise basis was
already to be found, in the former decision-making practice of the Commission
and in the existing Community case law, for expressly recognising that a
consultancy firm is liable for an infringement of Article 81(1) of the EC Treaty
where it contributes actively and intentionally to a cartel between producers
which are active on a market other than that on which the consultancy firm
itself operates" (para 150, emphasis added).

With regard to AC Treuhand's activity in this matter, specifically, the Court
found that: "the applicant acted in full knowledge of the facts and
intentionally when it made its professional expertise and infrastructure
available to the cartel, in order to benefit from it, at least
indirectly, in the course of implementing the individual agency agreements
which linked it to the three organic peroxide producers". (emphasis added, para
156).

The cartel

Organic peroxide products (or double oxygen bond organic chemical products)
are used for the production of plastic and rubber (value of the market in the
EEA in 2003 was approximately €250).

The decision found that during 1971-1999, the main producers in Europe fixed
the prices of organic peroxide products, agreed on and implemented a mechanism
for price increases, allocated customers and set up a system to monitor and
enforce their agreements.

With a total duration of 29 years, the cartel was the longest-lasting cartel
ever uncovered by the Commission.

The cartel was founded by Akzo (granted immunity from fine), Luperox (later
Atofina) and Peroxid Chemie. Perorsa joined the cartel in 1975 and Laporte
(renamed as Degussa UK Ltd.) joined the cartel in 1992, after it took full
control of Peroxid Chemie.

Swiss consultancy AC Treuhand played a key role in the cartel from 1993
organising meetings, often in Zürich, producing 'pink' and 'red' papers
with the agreed market shares which could not be taken outside AC Treuhand's
premises and even reimbursing the travel expenses of participants to avoid
leaving any traces about the illegal meetings.

The Commission found that the cartel was a very serious violation of Article
81(1) of the European Union Treaty and Article 53 of the EEA Agreement. It
imposed the following fines: